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ELCPartially Allowed· [2020] KEELC 3255 (KLR)

Mohammed Shahid Moughal v Michael Mooke Kikaye & 5 others [2020] KEELC 3255 (KLR)

Environment and Land Court
2 March 2020
COChristine Ochieng
4,336 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan buyer who paid Kshs 2.97 million for land sold before the seller had legal authority got his money refunded with interest, but not the land itself.

What this practically means

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Executive summary

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The Plaintiff sued claiming 79 acres to be excised from Kajiado/Ildamat/3, purchased under two sale agreements dated 18th May, 2009 and 10th February, 2011, seeking cancellation of the subdivisions of that title, a declaration of entitlement, an injunction, vacant possession, survey and beacons, general damages and costs. The 1st and 6th Defendants counterclaimed for a permanent injunction, damages for trespass and mesne profits, and a declaration that the subdivision and transfers were lawful. The court framed four issues: the 1st Defendant's capacity to sell; the Plaintiff's entitlement to the orders sought; the counterclaim; and costs. It held that the land belonged to Lekerra Kikae who died in 1982, and the 1st Defendant entered the sale agreements in 2009 and 2011 before his appointment as administrator on 16th May, 2011; he therefore lacked capacity and his dealings amounted to intermeddling under Section 45 of the Law of Succession Act. Relying on the privity doctrine, the court held the agreements bound only the Plaintiff and the 1st Defendant, not the beneficiaries, and that the subdivision effected under the Certificate of Confirmation of Grant in Nairobi HC Succession Cause No. 680 of 2010 was lawful. Fraud against the Land Registrar was not strictly proved; the caution was lawfully lifted after notice. The Plaintiff's claim for title, injunction, vacant possession, survey, transfer and damages failed against the Defendants 2 to 6, the suit being dismissed against them, but judgment was entered against the 1st Defendant for a refund of Kshs. 2,967,000 with interest at court rates. The counterclaim succeeded only as to a permanent injunction restraining the Plaintiff; mesne profits were refused. The 1st Defendant was ordered to bear the costs of the suit.

Key legal issues

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01

Capacity to sell deceased estate property

Holding

The 1st Defendant lacked capacity to enter into the sale agreements before his appointment as administrator; the transactions amounted to intermeddling.

Reasoning

The land belonged to Lekerra Kikae who died in 1982. The 1st Defendant entered the 2009 and 2011 sale agreements before being appointed administrator on 16th May, 2011. Under the Law of Succession Act, a personal representative is made so only by a court order, and dealings with the estate before that are intermeddling under Section 45.

p. 3
02

Entitlement to the 79 acres and cancellation of subdivisions

Holding

Claim refused; the subdivision and transfer were lawful and third-party titles could not be disturbed.

Reasoning

The beneficiaries did not sign the sale agreements, the court in the succession cause declined to recognise the plaintiff's purchaser's interest, and the privity doctrine means the contracts bind only the plaintiff and the 1st Defendant. Third parties now hold valid titles to the resultant subdivisions.

p. 4
03

Fraud allegations against the Land Registrar

Holding

Not proved; the Registrar lawfully removed the caution after notifying the cautioner who failed to appear.

Reasoning

DW2 confirmed the plaintiff was notified of the intention to remove the caution but did not appear. A caution cannot subsist indefinitely. Applying R.G Patel v Lalji Makanji, fraud must be strictly proved, and the plaintiff failed to discharge that burden.

p. 4
04

Counterclaim for injunction and mesne profits

Holding

Permanent injunction granted; damages and mesne profits refused.

Reasoning

Since there was no valid sale contract and the estate has been distributed, the plaintiff cannot possess land he does not own and was permanently restrained. But the 1st Defendant allowed the plaintiff into possession after taking his money, so he cannot claim mesne profits.

05

Refund of purchase price

Holding

Plaintiff entitled to refund of Kshs. 2,967,000 with interest at court rates.

Reasoning

The 1st Defendant admitted signing the sale agreements and receiving the monies, and acknowledged in court he was ready to refund since he had no land to sell. Justice therefore required a refund with interest from the date of payment.

p. 4

Legal principles established

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  • A person entering into a contract to dispose of a deceased person's estate before obtaining letters of administration lacks legal capacity and his actions amount to intermeddling under Section 45 of the Law of Succession Act.
  • A contract binds only the parties to it and cannot be enforced by or against non-parties, such as beneficiaries of a deceased estate.
  • Registration of a person as proprietor vests absolute ownership; a certificate of title is conclusive proof of proprietorship.
  • Allegations of fraud must be strictly proved; a caution cannot subsist indefinitely once the cautioner is notified.

Court orders

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  1. 1.The Plaintiff's suit as against the 2nd to 6th Defendants be and is hereby dismissed with costs.
  2. 2.Judgement be and is hereby entered for the Plaintiff as against 1st Defendant for the sum of Kshs 2,967,000.
  3. 3.The 1st Defendant be and is hereby directed to refund to the Plaintiff the purchase price of Kshs. 2,967,000 which he paid with interest at court rates from the date he paid it until payment in full or within 90 days from the date hereof.
  4. 4.Upon receipt of the final payment, the Plaintiff be and is hereby directed to offer vacant possession of the portion of the suit land he occupies.
  5. 5.Upon receipt of the final payment from the 1st Defendant, the Plaintiff be and is hereby permanently restrained from interfering with the resultant subdivisions of land parcel number Kajiado/Ildamat/3.
  6. 6.The costs of the suit to be borne by the 1st Defendant.

Authorities

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Legislation

  • Law of Succession ActSections 45, 82, 93(1)
  • Land Registration ActSections 24(a), 26(1), 80
  • Government Proceedings ActSection 13A(1)

Cases cited (12)

  • Giella V Cassman Brown & Company Limited
    (1973) EA 358
  • Inwards & Others V Baker
    (1965) 1 All ER
  • William Muthee Muthoni V Bank of Baroda
    Civil Appeal No. 21 of 2006
  • Moses C Muhia Njoroge & 2 Others V Jane W Lesaloi and 5 Others
    (2014) eKLR
  • Harrison Wachira Wanjohi V Bethwel Mwangi Githinji & 4 Others
    ELC at Muranga No. 11 of 2018
  • Arthi Highway Developers Ltd V West End Butchery Ltd
    CA No. 246 of 2013
  • Agricultural Finance Corporation V Lengetia Ltd
  • Aineah Likuyani Njirah V Aga Khan Health Services
    (2013) eKLR
  • R.G Patel Vs Lalji Makanji
    (1957) EA 314
  • Lawrence Onyiego & Another V Samuel Minika & Another
    (2017) eKLR
  • Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another
    [2015] eKLR
  • WILLY KIPSONGOK MOROGO v ALBERT K. MOROGO
    (2017) eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over disputes relating to title to land

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mohammed Shahid Moughal v Michael Mooke Kikaye & 5 others [2020] KEELC 3255 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3255/eng@2020-03-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.